OPINION: The Pokémon Company Was Within Their Rights

Monday, September 7th, 2015

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As some of you have heard by now, The Pokémon Company officially filed a lawsuit against two fans, Ramar Jones and Zack Shore for hosting the Unofficial Pokemon PAX Kickoff, a Pokémon themed fan event. While this is not the first time we have seen this scenario, it’s the first time in a while where we have seen a company actually sue a party over the infringement of their intellectual property rather than give the party a warning to cease and desist or a lawsuit will be filed. Well, at least it seems to be this way. For all we know, they could have sent a cease and desist order in the past that was ignored by the other party.

The Pokémon Company was within their legal rights to go after the fan group. At the end of the day, companies and people have the right to protect their own intellectual properties when they are being used without their permission, are being used by someone else to make profit for themselves and not for the owner of said property, and when they are being used in a manner publicly that does not fit the image of what the owner of the property wants the image of the intellectual property to be out there. It doesn’t matter how big or small the offense is legally, the owners of an IP have to go after any infringement to protect their rights.

So what exactly got Mr. Jones and Mr. Shore in trouble with The Pokémon Company? First, they blatantly used protected materials to promote and market the event. From the event poster, they slapped on both Pikachu and Snivy without the permission of The Pokémon Company and used their exact likeness and designs. The average person could come to conclude the event was either endorsed by Nintendo, Game Freak and The Pokémon Company or that the three companies are involved with the event, even when they are not involved with it.

A second reason they got into trouble was because there was a charge to get into the event. By charging money to come into the doors for the party, there was an intention to make profit off of the Pokémon property. It’s not all that different from someone buying a movie and then creating a counterfeit copy to sell off for a profit as if it was their own creation. Some could argue it was a way to keep crowds down, but there are alternate ways to do this without using a cover charge such as having private invitations. Bars have used cover charges as a method to gain more money for the limited number of people who can be seated inside. Besides, if I had an intellectual property and found out someone was using it without my permission to possibly make a profit, I would take the same actions as The Pokémon Company and stop it.

Other companies have had to take similar actions in order to protect their properties. For example, Xerox requested people to not use Xerox as an adjective, common noun or verb because the company faced losing its trademark if the use of Xerox in that matter became common. Disney has had to take action against businesses using their characters back in the late 1980s and has been involved in other suits as well. On the flip side, The University of Oregon is allowed to use Donald Duck’s likeness when an agreement was made between Disney and the university.

Lastly, the Pokémon franchise was being used to promote an event that would hurt the image of the franchise The Pokémon Company wants to promote. I have been to a couple of Pokémon events in my lifetime that were either put on by The Pokémon Company or were endorsed. While there are many adult fans of the franchise, the Pokémon franchise is catered and marketed towards a younger audience and is intended by the company to be a family friendly product. From where I stand, the biggest factor that got the PAX Kickoff Party in trouble was the serving of alcohol at the event, not because there were adults there who wanted to have a good time, but because the franchise is still marketed and promoted as a franchise for children and underage drinking is illegal. There would be parents who would be outraged seeing Pokémon at an adult event or alcohol being served at a event involving Pokémon.

Any company or person has to legally protect their own intellectual property and defend it from anything big or small. If they don’t, this could open the door for the intellectual properties to be lost if they let someone get away with breaking IP law. It is easy to say that it was just some small fry fans trying to have fun and The Pokémon Company was “picking on them”, but I guarantee if you owned an intellectual property and it was being infringed, you would protect your bottom line and take action.

For those who organize events and use protected properties and materials without the permission of the owner, take note of the mistakes made here and avoid getting into legal trouble. Hopefully, Mr. Jones and Mr. Shore will learn a valuable lesson as they head into court to not use protected properties and materials without the permission of the owners and to not use them to make a profit. Simply put, following the rules and using the IP when you have permission in the manner set by the owner will avoid getting you into trouble. The Pokémon Company was within their legal rights to take action and are required to defend their IP from any big or small infringement. Without their active defense of the IP, the rights to it could be lost. We will now have to watch and see what happens in court as this lawsuit will be decided by a judge and jury in Civil Court.

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